LCP4807 October-
November Portfolio
(FULL RESPONSES)
Semester 2 2024
, 1.1. Discuss the principle of exhaustion of domestic remedies under the European human rights
system with specific reference to the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
The principle of exhaustion of domestic remedies is a fundamental tenet within international human
rights law, mandating that individuals must utilize all available legal avenues within their national
judicial systems before appealing to international courts. This principle is articulated in Article 35(1)
of the European Convention on Human Rights (ECHR), which stipulates that the European Court of
Human Rights (ECtHR) can only consider cases where claimants have thoroughly exhausted domestic
legal remedies. This requirement underscores the importance of respecting the sovereignty of
member states by allowing them the first opportunity to address and rectify potential human rights
violations internally, thus preventing international courts from intervening prematurely in national
matters.
The exhaustion principle serves a dual purpose: it protects state sovereignty and ensures individuals’
rights to seek redress. By mandating that member states address complaints within their own legal
frameworks, the principle fosters accountability and encourages improvements in domestic human
rights practices. Nonetheless, the ECtHR acknowledges scenarios where the requirement to exhaust
domestic remedies may not be appropriate, particularly when such remedies are ineffective,
unavailable, or excessively delayed. A significant case in this regard is Airey v. Ireland, where the
Court determined that the exhaustion requirement does not apply if domestic remedies are
inaccessible or inadequate for effectively addressing the complaint. This flexibility allows the ECtHR
to consider cases where systemic issues, such as procedural barriers or lack of judicial independence,
compromise the delivery of justice and adequate redress.
Moreover, the ECtHR has expanded its definition of what constitutes an "effective remedy," taking
into account both procedural and structural challenges that may impede access to justice in
domestic systems. Despite these adaptations, critics contend that the exhaustion requirement
imposes substantial financial and procedural burdens on claimants, especially in countries with
under-resourced or inefficient legal systems. This disparity can create significant obstacles, making it
disproportionately challenging for individuals in such contexts to pursue justice at the European
level. Overall, while the exhaustion of domestic remedies principle reinforces state sovereignty and
promotes judicial efficiency, its application under the ECHR can create substantial hurdles for
individuals seeking international redress for human rights violations, highlighting the need for a
more nuanced approach to ensure equitable access to justice across member states.
1.2. Critically discuss whether individuals and non-governmental organizations (NGOs) can submit
communications to both the African Commission on Human and Peoples’ Rights and the African
Court on Human and Peoples’ Rights for an alleged violation of rights.
The African Charter on Human and Peoples' Rights (the Charter) establishes the African Commission
on Human and Peoples' Rights and the African Court on Human and Peoples' Rights, providing
mechanisms for individuals and non-governmental organizations (NGOs) to seek justice for human
rights violations. According to Article 55 of the Charter, both individuals and NGOs can submit
complaints, known as communications, to the African Commission, provided they adhere to specific
admissibility requirements, including the exhaustion of domestic remedies. This requirement aligns
with the principle of allowing states the opportunity to address human rights issues within their own
legal systems before regional bodies become involved.
November Portfolio
(FULL RESPONSES)
Semester 2 2024
, 1.1. Discuss the principle of exhaustion of domestic remedies under the European human rights
system with specific reference to the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
The principle of exhaustion of domestic remedies is a fundamental tenet within international human
rights law, mandating that individuals must utilize all available legal avenues within their national
judicial systems before appealing to international courts. This principle is articulated in Article 35(1)
of the European Convention on Human Rights (ECHR), which stipulates that the European Court of
Human Rights (ECtHR) can only consider cases where claimants have thoroughly exhausted domestic
legal remedies. This requirement underscores the importance of respecting the sovereignty of
member states by allowing them the first opportunity to address and rectify potential human rights
violations internally, thus preventing international courts from intervening prematurely in national
matters.
The exhaustion principle serves a dual purpose: it protects state sovereignty and ensures individuals’
rights to seek redress. By mandating that member states address complaints within their own legal
frameworks, the principle fosters accountability and encourages improvements in domestic human
rights practices. Nonetheless, the ECtHR acknowledges scenarios where the requirement to exhaust
domestic remedies may not be appropriate, particularly when such remedies are ineffective,
unavailable, or excessively delayed. A significant case in this regard is Airey v. Ireland, where the
Court determined that the exhaustion requirement does not apply if domestic remedies are
inaccessible or inadequate for effectively addressing the complaint. This flexibility allows the ECtHR
to consider cases where systemic issues, such as procedural barriers or lack of judicial independence,
compromise the delivery of justice and adequate redress.
Moreover, the ECtHR has expanded its definition of what constitutes an "effective remedy," taking
into account both procedural and structural challenges that may impede access to justice in
domestic systems. Despite these adaptations, critics contend that the exhaustion requirement
imposes substantial financial and procedural burdens on claimants, especially in countries with
under-resourced or inefficient legal systems. This disparity can create significant obstacles, making it
disproportionately challenging for individuals in such contexts to pursue justice at the European
level. Overall, while the exhaustion of domestic remedies principle reinforces state sovereignty and
promotes judicial efficiency, its application under the ECHR can create substantial hurdles for
individuals seeking international redress for human rights violations, highlighting the need for a
more nuanced approach to ensure equitable access to justice across member states.
1.2. Critically discuss whether individuals and non-governmental organizations (NGOs) can submit
communications to both the African Commission on Human and Peoples’ Rights and the African
Court on Human and Peoples’ Rights for an alleged violation of rights.
The African Charter on Human and Peoples' Rights (the Charter) establishes the African Commission
on Human and Peoples' Rights and the African Court on Human and Peoples' Rights, providing
mechanisms for individuals and non-governmental organizations (NGOs) to seek justice for human
rights violations. According to Article 55 of the Charter, both individuals and NGOs can submit
complaints, known as communications, to the African Commission, provided they adhere to specific
admissibility requirements, including the exhaustion of domestic remedies. This requirement aligns
with the principle of allowing states the opportunity to address human rights issues within their own
legal systems before regional bodies become involved.
